Published on Thursday, May 9, 2002 in the Los Angeles Times
Judge Rejects Easing of Mine-Waste Rules
Bush's decision to allow dumping into streams 'must fail,' he says
by Elizabeth Shogren
WASHINGTON -- A federal judge on Wednesday ordered the U.S. government to stop permitting coal companies to put tons of dirt and rock from their mountaintop mining operations into streams and valleys, a practice that has permanently changed the topography of Appalachia.
Just last week, the Bush administration rewrote the Corps of Engineers' clean water regulations to allow companies to continue filling valleys with the mining dirt, which already covers 1,000 miles of streams across Appalachia. But District Judge Charles H. Haden II in Charleston, W.Va., ruled that the revision was illegal, as was the corps' routine practice of allowing companies to fill streams and valleys with rock and dirt from mining operations.
"The agencies' attempt to legalize their long-standing illegal regulatory practice must fail," Haden said in his ruling. "The regulators' practice is illegal because it is contrary to the spirit and letter of the Clean Water Act."
A spokesman for the Environmental Protection Agency, which participated in the rule change, said the agency will seek a stay of the ruling pending an appeal.
"We are very concerned about the economic effect on the citizens of the impacted states and on future energy supplies," said Joe Martyak. "We consider this rule an effort to establish a regulatory environment that is clear, predictable, fair and fosters good environmental stewardship."
The judge, however, stressed that the Bush administration was acting out of turn by rewriting the rule. It should leave such sweeping changes of environmental laws to Congress, he said.
"However important to the energy requirements of the economy and to employment in the region, amendments to the act should be considered and accomplished in the sunlight of open congressional debate and resolution, not within the murk of administrative after-the-fact ratification of questionable regulatory practices," Haden wrote in his ruling.
In 1999, Haden made a similar ruling in a West Virginia case, but an appeals court voided his decision on jurisdictional grounds.
Joe Lovett, a West Virginia attorney who represented the environmental group Kentuckians for the Commonwealth in its case against the Corps of Engineers, said the ruling was a victory for the people whose lifestyles and security had been threatened by the massive engineering projects underway in Appalachia.
"The people who live near the mines will be saying hallelujah," Lovett said. "It's good news for the environment of the region and the forests and streams."
But Freda Williams, a local activist who has been struggling against mountaintop removal mining, was more cautious.
"With as many failures as we've had and as hard as we've been working, I'm hopeful--but I'm being realistic about it," she said. "With the administration that we've got right now on the federal and state level, I don't believe it will be banned, but I think it should be."
Also on Wednesday, a bipartisan group of representatives introduced legislation to overturn the administration's new regulation permitting mining companies to fill streams and valleys.
"This rule change by the Bush administration is the worst thing that has happened to the Clean Water Act since it was created in 1972," said Rep. Frank Pallone Jr. (D-N.J.).
Robert McLusky, an attorney for the Kentucky Coal Assn., which intervened in the lawsuit in support of the corps, said Haden's ruling would have a broad effect not just on mountaintop removal mining but also on deep mining and other types of surface mining.
The rugged, mountainous terrain of West Virginia lacks flat land to deposit the rock and dirt from mining, so companies routinely get permits to put them into valleys with streams.
McLusky stressed that in mountaintop removal mining, the operators have no choice but to put some of the mining dirt in valleys that hold streams because the pitch of the mountains is so steep.
Even after restoring the approximate contour of the mountains, the companies have extra rock and dirt.
"It's got to go somewhere," McLusky said. "You can't put back more than will stay at an angle of repose."
The mining industry, which argues that filling valleys is the only economical way to extract the clean-burning coal from Appalachia, was stunned by the decision.
"We are startled by the scope of his ruling," said Carol Raulston, spokeswoman for the National Mining Assn.
Raulston predicted that the ruling could have broad implications. For instance, it would prevent hard-rock mining companies in the West from getting permits to fill streams or wetlands with the byproducts of their operations.
The judge's ruling was full of a sense of outrage at the use of streams as disposal sites for mining waste--and at the Bush administration's effort to legitimize the practice.
"This obviously absurd exception would turn the Clean Water Act on its head and use it to authorize polluting and destroying the nation's waters for no reason but cheap waste disposal," Haden said.
He called the agency's attempt to disguise a major rule change as a mere effort to clarify a difference between EPA and Corps of Engineers regulations "disingenuous and incomplete."
This was not the first time that a Haden ruling has thrown the mining industry back on its heels.
In 1999, the judge ruled in favor of a group of West Virginians who sued the Corps of Engineers, charging that burying streams in mining dirt violated the federal Surface Mining and Clean Water acts.
The decision sent a panic through the mining industry, but an appeals court voided his decision, arguing that the state court should have heard the case.
Copyright 2002 Los Angeles Times